DP14297 International Jurisdiction over Standard-Essential Patents

Author(s): Henrik Horn
Publication Date: January 2020
Date Revised: March 2022
Keyword(s): Default rules, international jurisdiction, Standard-essential patents
JEL(s): F15, K21, K33, L40, O38
Programme Areas: Industrial Organization, International Trade and Regional Economics
Link to this Page: cepr.org/active/publications/discussion_papers/dp.php?dpno=14297

A sizeable literature analyzes the appropriate interpretation of FRAND commitments for standard-essential patents. With few exceptions, the literature disregards international dimensions, despite the fact that most standards are used in international markets. This paper uses a simple economic setting to assess pros and cons of the main jurisdictional bases in international lawâ?? the Territoriality and Nationality Principlesâ??when national regulatory authorities have conflicting preferences regarding the interpretation of FRAND commitments. The paper identifies situations where the bases can implement efficient outcomes, and where they fail. The paper also shows how non-discrimination obligations might improve upon the outcomes.